Citation Nr: 0606516
Decision Date: 03/07/06 Archive Date: 03/14/06
DOCKET NO. 02-16 995 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUES
1. Entitlement to an initial compensable rating for
bilateral hearing loss.
2. Entitlement to a rating in excess of 10 percent for
bilateral hearing loss from March 21, 2003.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
K. L. Wallin, Counsel
INTRODUCTION
The veteran served on active duty from January 1962 to May
1966.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a June 2002 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Los Angeles, California. In its decision, the RO, in
pertinent part, granted service connection for bilateral
hearing loss and assigned a noncompensable rating effective
March 2002. The same decision also denied service connection
for hemorrhoids. The veteran disagreed with the initial
noncompensable rating for bilateral hearing loss and the
denial of service connection for hemorrhoids. See Notice of
Disagreement (NOD) dated in June 2002.
The veteran presented testimony before the Board in February
2003. The transcript has been obtained and associated with
the claims folder.
The instant claim was previously before the Board in July
2003 and August 2004, and remanded for further development
and adjudication. The Board confirmed the denial of service
connection for hemorrhoids in its July 2003 decision. As
such, that claim is no longer in appellate status.
FINDINGS OF FACT
1. The veteran has been apprised of what evidence would
substantiate the claim for benefits and the allocation of
responsibility for obtaining such evidence; and all relevant
medical and lay evidence obtainable and necessary to render a
decision in this matter has been received.
2. Prior to March 21, 2003, the veteran's bilateral hearing
loss was productive of no more than a Level I designation in
the right ear, and a Level IV designation in the left ear.
3. On March 21, 2003, based on puretone threshold average
alone, the veteran's bilateral hearing loss was productive of
a Level III in the right ear, and a Level IV in the left ear.
CONCLUSIONS OF LAW
1. The Veterans Claims Assistance Act of 2000 has been
satisfied. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107
(West 2002).
2. The schedular criteria for entitlement to an initial
compensable evaluation for bilateral hearing loss, have not
been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.102, 3.159,
4.20, 4.85, 4.86, Tables VI - VII (2005).
3. The schedular criteria for entitlement to an evaluation
in excess of 10 percent from March 21, 2003, for bilateral
hearing loss, have not been met. 38 U.S.C.A. § 1155;
38 C.F.R. §§ 3.102, 3.159, 4.20, 4.85, 4.86, Tables VI - VII
(2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duties to Notify and Assist
The veteran filed his original claim for service connection
for bilateral hearing loss in March 2002. The Veterans
Claims Assistance Act of 2000 (VCAA), enacted on November 9,
2000, emphasized VA's obligation to notify claimants what
information or evidence is needed in order to substantiate a
claim, and it affirmed VA's duty to assist claimants by
making reasonable efforts to get the evidence needed.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002);
see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In
August 2001, VA issued regulations to implement the VCAA. 38
C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2004).
A VCAA notice, as required by 38 U.S.C. § 5103(a), must be
provided to a claimant before the initial unfavorable agency
of original jurisdiction (AOJ) decision on a claim for VA
benefits. Pelegrini v. Principi, 18 Vet. App. 112, 120
(2004). While the veteran's representative asserted in a
September 2005 statement that VA has not fulfilled the notice
requirements provided in the VCAA, and that the RO failed to
notify the claimant of the specific information he would need
to substantiate his claim, the Board does not agree. In this
case, the RO did provide the veteran with notice of the VCAA
in May 2002, prior to the initial decision on the claim in
June 2002. Therefore, the timing requirement of the notice
as set forth in Pelegrini has been met and to decide the
appeal would not be prejudicial to the claimant.
Moreover, the requirements with respect to the content of the
VCAA notice were met in this case. VCAA notice consistent
with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) must (1)
inform the claimant about the information and evidence not of
record that is necessary to substantiate the claim; (2)
inform the claimant about the information and evidence that
VA will seek to provide; (3) inform the claimant about the
information and evidence the claimant is expected to provide;
and (4) request or tell the claimant to provide any evidence
in the claimant's possession that pertains to the claim.
This "fourth element" of the notice requirement comes from
the language of 38 C.F.R. § 3.159(b)(1).
The RO specifically informed the veteran in the May 2002
letter as to what kinds of evidence was needed to
substantiate the original claim for service connection for
bilateral hearing loss. The veteran was informed that
evidence towards substantiating his claim would be evidence
of (1) a current disability; (2) the existence of the disease
or injury in service, and; (3) a relationship or nexus
between the current disability and any injury or disease
during service.
While the Board notes the May 2002 VCAA letter was regarding
the veteran's service connection claim for bilateral hearing
loss and not for an increased rating claim, the Board's
decision to proceed in adjudicating this claim does not,
therefore, prejudice the veteran in the disposition thereof.
See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).
Pursuant to VAOPGCPREC 8-2003 (December 22, 2003),
38 U.S.C.A. § 5103(a) does not require VA to provide notice
of the information and evidence necessary to substantiate a
claim newly raised in a notice of disagreement (NOD). The
veteran filed his request for service connection in March
2002. The June 2002 rating decision granted service
connection for bilateral hearing loss and assigned a
noncompensable rating effective March 2002. The veteran took
issue with the initial noncompensable rating in his June 2002
NOD. According to VAOPGCPREC 8-2003, if in response to
notice of its decision on a claim for which VA has already
given the section 5103(a) notice, VA receives a NOD that
raises a new issue, section 7105(d) only requires VA to take
proper action and issue a statement of the case (SOC) if the
disagreement is not resolved. The RO properly issued a
September 2002 SOC, which contained the pertinent criteria
for establishing an increased rating, the new issue. As
such, the Board finds that the duty to assist and notice
provisions of the VCAA have been satisfied.
The Board notes that in August 2004, the Appeals Management
Center (AMC) sent the veteran a VCAA letter, which notified
him of the evidence necessary to support his increased rating
claim. Specifically, he was notified to submit evidence that
his service-connected bilateral hearing loss had worsened in
severity. In February 2005, the veteran was afforded an
additional opportunity to submit any evidence in support of
his claim. Further, the February 2005 letter was sent for
the express purpose of notifying the veteran of the "fourth
element," i.e., to provide any evidence in his possession
that pertained to his claim. The veteran did not respond.
Finally, in September 2005, the veteran was notified that his
claim was being returned to the Board and he was asked to
submit any additional evidence pertaining to his appeal.
Again, the veteran did not respond.
Therefore, the Board finds that the veteran was fully
notified of the need to give to VA any evidence pertaining to
his claim. All the VCAA requires is that the duty to notify
is satisfied and that claimants are given the opportunity to
submit information and evidence in support of their claims.
Once this has been accomplished, all due process concerns
have been satisfied. See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also
38 C.F.R. § 20.1102 (harmless error). As noted above,
because each of the four content requirements of a VCAA
notice has been fully satisfied in this case, any error in
not providing a single notice to the appellant covering all
content requirements is harmless error.
Service medical and personnel records, reports of VA
examination, and private medical records have been obtained
in support of the claim on appeal. The veteran was afforded
a VA audiological examination as recently as January 2004.
In sum, the Board finds that VA has done everything
reasonably possible to assist the veteran. In the
circumstances of this case, additional efforts to assist the
appellant in accordance with the VCAA would serve no useful
purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546
(1991) (strict adherence to requirements in the law does not
dictate an unquestioning, blind adherence in the face of
overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
veteran are to be avoided).
VA has satisfied its duties to inform and assist the veteran
at every stage of this case. Given the development
undertaken by the RO and the fact that the veteran has
pointed to no other pertinent evidence that has not been
obtained, the Board finds that the record is ready for
appellate review.
Criteria
Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities, found
in 38 C.F.R., Part 4. The rating schedule is primarily a
guide in the evaluation of disability resulting from all
types of diseases and injuries encountered as a result of or
incident to military service. The ratings are intended to
compensate, as far as can practicably be determined, the
average impairment of earning capacity resulting from such
diseases and injuries and their residual conditions in
civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
for that rating. 38 C.F.R. § 4.7.
In considering the severity of a disability, it is essential
to trace the medical history of the veteran. 38 C.F.R.
§§ 4.1, 4.2, 4.41. Consideration of the whole-recorded
history is necessary so that a rating may accurately reflect
the elements of disability present. 38 C.F.R. § 4.2; Peyton
v. Derwinski, 1 Vet. App. 282 (1991). While the regulations
require review of the recorded history of a disability by the
adjudicator to ensure a more accurate evaluation, the
regulations do not give past medical reports precedence over
the current medical findings. Where an increase in the
disability rating is at issue, the present level of the
veteran's disability is the primary concern. Francisco v.
Brown, 7 Vet. App. 55, 58 (1994).
Analysis
The veteran argues that his service-connected bilateral
hearing loss warrants a compensable rating prior to March 21,
2003, and a rating in excess of 10 percent thereafter. He
reports such symptoms as having to wear hearing aids,
difficulty hearing in crowds, difficulty hearing the
television making it necessary to utilize captions, and
difficulty hearing his wife talking to him in the next room.
Historically, service connection was awarded in a June 2002
rating decision. The RO assigned a noncompensable rating
effective March 25, 2002, the date of claim. The award was
based on pertinent part on the veteran's service medical and
personnel records, as well as a March 2002 audiogram. The
veteran disagreed with the initial noncompensable rating in
his June 2002 NOD. As such, the severity of the disability
at issue is to be considered during the entire period from
the initial assignment of a disability rating to the present
time. See Fenderson v. West, 12 Vet. App. 119, 125-126
(1999).
In December 2004, the RO increased the disability rating for
the veteran's hearing loss to 10 percent, effective March 21,
2003. Applicable law mandates that when a veteran seeks an
increased rating, it will generally be presumed that the
maximum benefit allowed by law and regulation is sought, and
it follows that such a claim remains in controversy where
less than the maximum benefit available is awarded. See AB
v. Brown, 6 Vet. App. 35 (1993). The veteran has not
withdrawn his increased rating claim and as such, it remains
in appellate status.
Assignments of disability ratings for hearing impairment are
derived by a mechanical application of the rating schedule to
the numeric designations assigned after audiometric
evaluations are rendered. 38 C.F.R. §§ 4.85, 4.86, Tables
VI, VIA, VII; Lendenmann v. Principi, 3 Vet. App. 345, 349
(1992). Audiometric evaluations are conducted using the
controlled speech discrimination tests together with the
results of the puretone audiometry test. 38 C.F.R.
§ 4.85(a). Numeric designations (I through XI) are assigned
by application of Table VI, in which the percentage of
discrimination is intersected with the puretone decibel loss.
38 C.F.R. § 4.85, Table VI. The results are then applied to
Table VII, for a percentage. Id.
Under 38 C.F.R. § 4.86, evaluation of veterans with certain
patterns of exceptional hearing impairment is contemplated.
In the case where puretone thresholds are 55 decibels or more
at each of the four specified frequencies (1000, 2000, 3000,
and 4000 Hertz), either Table VI or Table VIA is applied, and
whichever results in the higher numeral shall be applied.
38 C.F.R. § 4.86(a). In addition, when the puretone
threshold is 30 decibels or less at 1000 Hertz and 70
decibels or less at 2000 Hertz, the higher numeral of Table
VI or Table VIA is also applied. 38 C.F.R. § 4.86(b).
The Board has thoroughly reviewed all the evidence of record,
to include but not limited to: service medical records;
statements of the veteran; VA audiograms dated in March 2002,
December 2002, and January 2004; VA outpatient treatment
records dated in 2001; and private medical records from MER
Hearing Service, Inc. Having carefully considered the
veteran's contentions in light of the evidence of record and
the applicable law, the Board finds that the veteran's
bilateral hearing loss more closely approximates the criteria
for an initial noncompensable rating and a 10 percent rating
from March 21, 2003.
The pertinent evidence is as follows. The veteran was
afforded a VA audiogram in March 2002. Pure tone thresholds,
in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
5
15
30
55
85
LEFT
15
20
35
70
90
Speech audiometry revealed speech recognition ability of 96
percent in the right ear and of 80 in the left ear. The
puretone average was 46.25 in the right ear and 53.75 in the
left ear (the sum of the puretone thresholds at 1000, 2000,
3000, and 4000 Hertz divided by four). 38 C.F.R. § 4.85(d).
On the authorized audiological evaluation in December 2002,
the examiner found the veteran's hearing to be essentially
unchanged from March 2002. Pure tone thresholds, in
decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
20
30
55
85
LEFT
15
25
30
65
85
Speech recognition discrimination scores were not noted on
this examination report. The puretone average was 47.50 in
the right ear and 51.25 in the left ear (the sum of the
puretone thresholds at 1000, 2000, 3000, and 4000 Hertz
divided by four). 38 C.F.R. § 4.85(d).
Applying the foregoing medical evidence to the rating
criteria for hearing impairment, the Board concludes that the
currently assigned initial noncompensable evaluation for
bilateral hearing loss is appropriate, and there is no basis
for a higher evaluation at this time. In that regard, in
March 2002 the veteran's right ear manifested an average
puretone threshold of 46 decibels and 96 percent of speech
discrimination, resulting in a Level I designation under
Table VI. 38 C.F.R. § 4.85. The veteran's left ear
manifested an average puretone threshold of 54 decibels and
80 percent of speech discrimination, resulting in a Level IV
designation under Table VI. Id. Together, a Level I and
Level IV designation results in a 0 (zero) percent rating,
under 38 C.F.R. § 4.85, Table VII, and there is no basis for
a higher initial rating.
As noted above, the puretone threshold average reported on
the December 2002 examination were essentially unchanged from
those reported in March 2002. While the December 2002 report
did not include speech discrimination scores, the Board finds
that there would be no change in the veteran's Level I and
Level IV designations for the right and left ear,
respectively, if the December 2002 puretone thresholds were
employed with the March 2002 speech discrimination scores
under Table VI. This would not result in a higher rating
under 38 C.F.R. § 4.85, Table VII. Furthermore, even if VA
were to rate hearing loss shown on the December 2002
examination by employing Table VIA (for rating hearing loss
based only on puretone threshold average), a compensable
rating would not be warranted. The average puretone
threshold in the right ear, 47.5 decibels, results in a Level
II designation under Table VIA. 38 C.F.R. § 4.85. The
veteran's left ear had an average puretone threshold of 51.25
decibels, resulting in a Level III designation under Table
VIA. Id. Together, a Level II and Level III designation
still results in a 0 (zero) percent rating, under 38 C.F.R.
§ 4.85, Table VII, and there is no basis for a higher initial
rating.
In support of his claim, the veteran submitted a private
audiogram from MER Hearing Services, Inc. dated March 21,
2003. Pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
20
25
40
55
80
LEFT
20
30
40
70
90
Speech recognition scores were noted; however, it was not
clear whether the Maryland CNC Test was utilized. While not
provided, the puretone averages are estimated by the Board to
be 50 in the right ear and 58 in the left ear.
On the authorized VA audiological evaluation in January 2004,
pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
25
40
55
85
LEFT
25
25
35
70
90
Speech audiometry revealed speech recognition ability of 88
percent in the right ear and of 82 in the left ear. The
puretone average is estimated by the Board at 51 in the right
ear and 55 in the left ear.
Applying the March 2003 and January 2004 audiograms to the
rating criteria for hearing impairment, the Board concludes
that the currently assigned 10 percent evaluation from March
21, 2003, for bilateral hearing loss is appropriate, and
there is no basis for a higher evaluation at this time. In
that regard, when using only the puretone threshold average,
in March 2003, the veteran's right ear manifested an average
puretone threshold of 50 in the right ear, resulting in a
Level III designation under Table VIA. 38 C.F.R. § 4.85.
The veteran's left ear manifested an average puretone
threshold of 58, resulting in a Level IV designation.
Together a Level III and a Level IV results in a 10 percent
rating under 38 C.F.R. § 4.85, Table VII.
However, in January 2004 the veteran's right ear manifested
an average puretone threshold of 51 decibels and 92 percent
of speech discrimination, resulting in a Level I designation
under Table I. 38 C.F.R. § 4.85. The veteran's left ear
manifested an average puretone threshold of 55 decibels and
82 percent of speech discrimination, resulting in a Level IV
designation under Table VI. Id. Together, a Level I and
Level IV designation results in a 0 (zero) percent rating,
under 38 C.F.R. § 4.85, Table VII.
The Board notes that when applying the January 2004 audiogram
results to the rating criteria for hearing impairment, a
noncompensable rating is warranted. However, when utilizing
only the puretone threshold average in March 2003, a 10
percent rating is appropriate. Based on the March 2003
findings, the RO granted an increased 10 percent rating.
Affording the veteran all reasonable doubt and in light of
his current complaints, the Board shall continue the
currently assigned 10 percent rating from March 21, 2003.
There remains, however, no objective basis for a rating in
excess of 10 percent from March 21, 2003.
The Board notes that the veteran's bilateral hearing loss has
never been shown to fall under the exceptional patterns of
hearing loss contemplated under either 38 C.F.R. § 4.86(a),
as four of the specified frequencies (1000, 2000, 3000, and
4000 Hertz) are not 55 decibels or more, or 38 C.F.R.
§ 4.86(b), as the puretone threshold are not 30 decibels or
less at 1000 Hertz, and 70 decibels or more at 2000 Hertz.
In reaching the foregoing determination, the Board has
considered the history of the veteran's bilateral hearing
loss, as well as the current clinical manifestations and the
effect this disability may have on the earning capacity of
the veteran, from the initial grant of service connection to
the present. See 38 C.F.R. §§ 4.1, 4.2; See Fenderson, 12
Vet. App. at 126. Should the veteran's hearing loss
disability change in the future, he may file another claim
for an increased evaluation for hearing loss, but at the
present time there is no basis for a higher evaluation. See
38 C.F.R. § 4.1.
In reviewing the foregoing, the Board has been cognizant of
the "benefit of the doubt" rule. However, this case does
not present such a state of balance between the positive
evidence and negative evidence to allow for a favorable
determination. See Gilbert v. Derwinski, 1 Vet. App. 49
(1990).
Further, in the present case, the evidence does not reflect,
nor does the veteran contend otherwise, that his bilateral
hearing loss has caused marked interference with employment
(i.e., beyond that already contemplated in the assigned
evaluation), or necessitated any frequent periods of
hospitalization, such that application of the regular
schedular standards is rendered impracticable. Hence, the
Board is not required to remand this matter to the RO for the
procedural actions outlined in 38 C.F.R. § 3.321(b)(1) for
assignment of an extra-schedular evaluation. See Bagwell v.
Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet.
App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227
(1995).
ORDER
Entitlement to an initial compensable rating for bilateral
hearing loss is denied.
Entitlement to a rating in excess of 10 percent from March
21, 2003, is denied.
____________________________________________
DENNIS F. CHIAPPETTA
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs